February 1, 2006

How would he react when Bush introduced him to Congress? (He would make a self-conscious grin.)

My response to that moment: "Roberts has a clenched jaw and a downturned mouth that somehow reads as a proud smile. Alito has a similar serious face to start but then he breaks into a nice grin." It looked natural to me. What was self-conscious about the grin? I think if anything, the serious face was self-conscious, but he was comfortable enough to let his genuine pleasure break through.

If Alito and his peers were being extra cautious, that was understandable. Yesterday's rare overlap of a State of the Union address and a Supreme Court confirmation could have been a celebration of democracy. Instead, the anger from the confirmation process spread through the body politic, leaving a brittle, divided House.

Were they being "extra cautious"? It's always a problem for the Justices to be on view at the SOTU, because they can't act involved in politics, and they've got to just sit there on view in the front row. That's offered as an explanation for why so few of them show up for the big event. But the two new ones had reason to be there, and it was nice for two others to attend. Those two were the junior appointees of the previous two Presidents (Breyer and Thomas).

I was only watching on TV, but it didn't seem to me that the Justices were affected by the political struggle that just took place in the Senate. It's equally easy to imagine that Roberts and Alito accepted that that struggle is a necessary part of the confirmation process, which they had to make their way through; they prepared, handled themselves well, and now the ordeal is over for good. I tend to think that even as they were sitting there is the committee room answering overbearing, often rude questions, they felt a sense of distance from the fray. They sat through it, acting deferential, but knowing the time would pass and they would, soon enough, be untouchable forever by these politicos. I imagine such thoughts ran through their head with regularity and kept them supremely cool while Senators emoted furiously.

Alito began tentatively. As the justices were announced, he listed to the Republican side of the aisle as he made his entrance and barely glanced toward the Democrats. He stood awkwardly next to Breyer, a Clinton appointee, making occasional small talk as he waited for the speech to start. When Bush entered and shook the new justice's hand, howls of approval poured from the GOP side.

Well, I just took another look at the TiVo'd material here and couldn't detect anything tentative or awkward. Alito looked happy and seemed to be interacting with Breyer in the style of an ordinary colleague. When Bush greeted him, Alito had a nice little smile. I didn't notice anything special about the applause at that point, certainly not any howling. He craned his head around at one point, which made me think at first that he was checking out the architecture of the room, before I realized he must have wanted to look at his wife.

At times, Alito followed the lead of the other three justices who sat with him in the front row. When Bush said "We love our freedom, and we will fight to keep it," Thomas looked at Roberts, who looked at Breyer, who gave an approving shrug; all four gentlemen stood and gave unanimous applause.

At other times, Alito showed independence from his senior colleagues. When Bush delivered the stock line "The state of our union is strong," Alito dissented while the other three robed justices in the front row applauded. When Bush declared that "liberty is the right and hope of all humanity," Alito was the only member of the judicial quartet to provide his concurring applause.

It seemed from their frequent conferences that the justices had agreed on some ground rules: Any mention of Iraq or hot domestic disputes were off limits; broad appeals to patriotism were deemed applause-worthy. But there were disputes. When Bush said "We will never surrender to evil," the justices conferred briefly. Breyer shook his head, but Roberts overruled him, and Breyer reluctantly stood with his three colleagues.

I'm glad someone was keeping an eye on this, and it's nice to get the details. It seems as though they just have a difficult role to play as judges. It's not a question of whether a particular line is "applause-worthy," but whether it's a place where a judge can appropriately react. They don't want to look like four statues, but they don't want to look as though they have a shred of partisanship.

I agree with Breyer that "We will never surrender to evil" is not a line judges should respond to. "Evil" is a code word in the political discourse, and "never surrender" is a classic political phrase demanding a fight to victory. These things mean too much. But I can accept Roberts "overruling." Come on, evil, who's against that? Never's a strong word, but is it supposed to be okay to surrender to evil once in a while? I think it's cool that the justices were signaling each other and acting as a quartet.

I seem to recall that up through the mid-nineties, all nine justices generally attended. It seems that lately, attedance has been much reduced. Some years, I believe, only Breyer showed up. Does any one know why this is?

With all due respect, I think "a tad subjective" is erring on the side of generosity. Yes, Dana Millbank was writing a colour piece where a certain amount of subjectivity is appropriate but tone also matters. Micro-parsing body language the way he did reeks of the cool kid's table in a high school lunch room: "Don't look, Barbie, John and Sammy are like totally into you! Clarene had a crazy crush, but Cindy told me Steve thinks you're a mega-bitch."

I think its cool that at least one of the judges attending was a liberal, and at least one of the judges who stayed home was very conservative. That made it seem really bi-partisan; if only the five conservatives had attended it would have looked bad, and it would have looked equally bad if the only judges to stay home were the liberals.